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Archive of entries posted on January 2013

Professor Chafetz and the “Constitutionally Conscientious Senator”

Before considering the Senate’s action last week in amending its rules, I want to summarize one additional anti-entrenchment school of thought. We have already discussed the theory of the December 12 letter, which holds that a simple majority must be able to obtain a rules change at the beginning of a new Congress. An alternative [...]

How Might the Administration Respond to the Noel Canning Decision?

Professor Seth Barrett Tillman takes issue with point 5 (see update below) Here are the options I can think of for the administration and/or Senate Democrats to respond to the D.C. Circuit’s invalidation of President Obama’s January 2012 recess appointments to the National Labor Relations Board. Three of the options involve seeking to reverse the [...]

D.C. Circuit to Wirt and Daugherty: Drop Dead

Your humble blogger is pretty much speechless after the D.C. Circuit’s sweeping decision today in the Noel Canning recess appointments case. In light of the oral argument, it is not all that surprising that the panel held that the Recess Appointments Clause only permits inter-session recess appointments. But I am pretty stunned (although admittedly this [...]

Entrenchment Reconsidered (Part II)

This brings us to the second pillar of the anti-entrenchment position, which might be called the “quasi-constitutive” argument. Professors McGinnis and Rappaport, who pioneered this argument, explain: If a legislature could pass a measure that would prevent a successor from taking action, then that measure would function as a constitutional restraint on the future legislature. [...]

Entrenchment Reconsidered (Part I)

The anti-entrenchment critique of Senate rules rests on two pillars. The first, which I will consider here, is an analogy to a line of cases holding that a later statute trumps an earlier one, even if the earlier statute purported to be entrenched against repeal. Thus, for example, a statute which establishes a particular location [...]

Entrenchment and the Academic “Consensus”

The December 12 letter claims “the overwhelming consensus of the academic community [is] that no pre-existing internal procedural rule can limit the authority of each new Senate to determine by majority vote its own rules of procedure.” Although this statement is closer to being true than the letter’s assertions about Senate continuity and precedent, it [...]

Senate Rules from the Internal Point of View

As I mentioned in my last post, Professor Chemerinsky’s description of the 1975 Senate vote in sustain Majority Leader Mike Mansfield’s point of order changed slightly from his 1997 article to his 2005 article. In the former he said that the vote “establish[ed] that a majority of the Senate would abide by the supermajority requirements [...]